living together, a legal guide for unmarried couples 13th (2006)

This book explains the wide range of legal and practical rules that affect opposite-sex unmarried couples living together—from sharing money and property contract law to owning a house t

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Cover design Toni ihara

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living together : a legal guide for unmarried couples / by Toni ihara, ralph warner & frederick hertz 13th ed.

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includes index.

isbn 1-4133-0423-0

1 unmarried couples legal status, laws, etc. united states 2 unmarried

couples legal status, laws, etc. united states forms i warner, ralph E ii hertz, frederick iii Title

by Toni ihara and ralph warner

all rights reserved printed in the usa

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for the 12th edition, thanks are due to Twila slesnick for her edits and additions to the income tax and retirement plans material

About the Authors

attorneys Toni ihara and ralph warner have been involved in the self-help law movement since its inception in the early 1970s ralph warner is a co-founder of nolo and is author of several self-help legal books, including nolo’s Everybody’s Guide to Small Claims Court Toni ihara is an anthropologist turned lawyer turned graphic artist, and has been with nolo since the beginning after living together for nearly 20 years, Toni and ralph are now married

frederick hertz is a practicing attorney and mediator and the author of Legal Affairs: Essential Advice for Same-Sex Couples (owl books) and co-author of nolo’s A Legal Guide for Lesbian & Gay Couples he lives in the san francisco bay area

Living Together: An Introduction

1

Living together has never been more popular

according to the 2000 Census data, over 5.4

million unmarried couples live together (which

translates into 10.8 million people) This is a

whop-ping 72% increase since 1990 forty percent of

unmarried households have children The number of

cohabiting seniors tripled in that same period The

average american spends the majority of his or her

life unmarried

if you are part of an unmarried couple living

together, it’s probably comforting to know that you are

far from alone however, this doesn’t mean that you

can ignore how the law affects your relationship This

book explains the wide range of legal and practical

rules that affect opposite-sex unmarried couples living

together—from sharing money and property (contract

law) to owning a house together (real estate law) or

sharing an apartment (landlord-tenant law) to having

a child with your partner (family law) to writing a will

(estate planning)

if you are part of a gay or lesbian couple living

together, see A Legal Guide for Lesbian & Gay

Couples, by hayden Curry, denis Clifford, robin

leonard, and frederick hertz, also published by

nolo

by understanding the law, you and your partner

can make informed decisions about how to structure

your life, finances, property ownership, and family

relationships to best meet your needs failing to learn

about the law and take measures to protect yourself

and your partner can have negative consequences

often, this is because the special rules governing

married couples (such as those relating to property

ownership, divorce, and inheritance rights, to name

a few) don’t apply to unmarried couples in order

to compensate for this, you’ll have to do some extra

work for example, you may want to write a will to

ensure that your partner gets your property when you

die, sign paternity statements to ensure that a father’s

parental rights are preserved, or create a “living

together contract” to avoid protracted court battles

over property if you split up

To help you, we provide dozens of written

documents (both as tear-out forms and on Cd) that

unmarried couples can use to spell out their

individ-ual legal and financial arrangements, including:

• living together contracts regarding your money and property—whether you want to keep everything separate, pool all assets, or something

in between (such as share ownership of a car or specific item)

• house ownership agreements—whether you’re sharing costs and ownership equally or not

• basic wills and estate planning forms

• parenting agreements, paternity statements, and other documents relating to children you have together (or bring into your relationship from a previous marriage), and

• property settlement agreements for use at separation

we believe that most unmarried couples can safely and easily master the majority of legal rules that affect them however, it’s also true that an experienced lawyer’s advice can be invaluable when it comes to dealing with more complicated situations we’ll point out how and when a lawyer’s expertise can be helpful—for example, if one of you has children or substantial assets, or you’re dealing with complicated estate planning

What’s in a Name?

one of the common issues faced by unmarried couples

is how to introduce each other in a way that reflects the importance of your relationship—boyfriend/

girlfriend, special friend, significant other, lover, or posslQ (person of the opposite sex sharing living Quarters, the Census bureau phrase for heterosexual couples who live together without getting married)— the choice is yours because “partner” is one of the most commonly used and neutral terms, we use it throughout this book to refer to one member of an unmarried couple

There are many reasons why people choose to live together without getting married some don’t see the need for the state’s approval of their commitment

to each other many couples view it as a trial period before marriage some avoid marriage because they have gone through a messy divorce young people

in expensive urban areas often live with partners

in order to reduce housing costs and the

fast-increasing number of unmarried couples over 45 that

live together—over 1/5 of all unmarried couples fall

into this category—often have financial concerns that

come into play for example, by not marrying they

don’t become legally obligated for their partner’s

medical treatment, and they reduce the risk of paying

tax on social security benefits and by not marrying,

many avoid tricky inheritance issues if one or both

partners have children from a previous marriage or

own substantial assets

finally, changing social attitudes and values have

made living together less of a stigma; living together

is not considered as rare (or immoral) as it was 25 or

more years ago in fact, the american law institute,

an influential organization of lawyers, judges, and

legal scholars, recently recommended sweeping

changes in family law, including recommending that

family courts and state lawmakers begin to treat

liv-ing together relationships more like marriage—even

recommending that laws provide for alimony-like

payments when unmarried couples split up after a

long time

whatever your reasons for not marrying, this

book arms you with information to tackle most of the

legal issues that arise during unmarried partnerships,

including better managing your financial affairs,

protecting your property, buying a house or other

property together, having or co-parenting children,

planning for your death, and dealing with a breakup

This icon refers you to related information

in another chapter of this book.

This icon alerts you to a practical tip or good idea.

This is a caution to slow down and consider potential problems.

This icon means that you may be able to skip some material that doesn’t apply to your situation.

This means that the form discussed in the text is on the forms Cd included with this book and a tear-out copy is in appendix ii.

This icon lets you know when you may need the advice of an attorney who specializes in a particular area such as family law or real estate.

Check Out the Alternatives to Marriage Project

laws affecting unmarried couples change from time

to time To keep up to date on a particular issue, follow our advice in Chapter 11 on doing your own legal research also, check the updates section on nolo’s website, www.nolo.com , for key legal rulings that affect unmarried couples in addition, we highly recommend that you check out the alternatives to marriage project, a national organization that provides resources, support, and advocacy for unmarried people living together for more information, and to receive their newsletter “alternatives to marriage update,” see the aTmp website at www.unmarried.org, or write

to them at aTmp, p.o box 1922, albany, ny 12201 phone 518-462-5600.

n

The Legal State of Living Together

A Sex and the Law 2/2

B common Law Marriage 2/3

c Living Together contracts 2/4

1 Living Together contracts—What They Are and

Why unmarried couples need one 2/5

2 The Law and Living Together contracts 2/6

3 Some general Legal rules regarding Living Together contracts 2/6

d To Be Safe, Write It down 2/9

e What happens to Your Written Living Together Agreement If You get Married? 2/10

F domestic Partners 2/11

1 domestic Partnership Programs and Benefits 2/11

2 What Are the Legal Implications of registering as domestic Partners? 2/12

2

This chapter provides an overview of the key

legal issues affecting unmarried couples—

from the laws of living together (cohabiting)

to making property agreements This chapter also

explains the rules regarding common law marriages

and domestic partnerships

A Sex and the Law

The united states supreme Court finally entered

the 21st century in 2003 in Lawrence v Texas, 123

s.Ct 2472 (2003), the court struck down a Texas law

prohibiting “deviate sexual intercourse” (in this case,

sodomy) between two persons of the same sex The

supreme Court overruled its own opinion in Bowers

v Hardwick, 486 u.s 186 (1986), which upheld a

similar law in georgia The supreme Court held that

the due process Clause of the fourteenth

amend-ment protects the decisions of individuals about

intimate physical relationships from intrusion by the

state, and that the protection extends to unmarried as

well as married persons

The legal effect of Lawrence v Texas was to

ren-der all sodomy laws unconstitutional, including those

directed at heterosexual couples of course, the laws

of the states that continue to prohibit sodomy will

stay on the books until they are challenged in court

or repealed by the legislature if you live in one of

those states and are prosecuted for sodomy, however,

you should be able to get your case dismissed simply

by raising a challenge under Lawrence.

although it does not address such laws directly,

Lawrence also calls into question all restrictions

on consensual adult sexual activity, such as laws

prohibiting cohabitation and fornication (see “legal

definitions of prohibited sex acts,” below.) if you

and your partner are over 18 and neither of you is

married to someone else, you can consider yourself

fairly safe from criminal prosecution for your private,

consensual sexual activity, even if your state still

has laws on the books relating to cohabitation and

fornication

adultery, however is still illegal in many states

These laws may not be affected by the Lawrence v

Texas decision, because of the special public

poli-cies involved (for example, support of marriage and

protection of children) adultery laws may still find their way into divorce, alimony, and custody pro-ceedings, or they may be invoked in cases involving property disputes (see Chapter 8 for more on these issues.)

The National Gay and Lesbian Task Force (NGLTF) keeps track of sex laws affect- ing both heterosexuals and homosexuals. for more information, contact the nglTf at 2320 17th st., nw, washington, dC 20009, 202-332-6483, or check their website at www.ngltf.org The american Civil liberties union also monitors sex laws for information, see www.aclu.org

Speaking of sex—don’t. it is critical that you omit any references to a sexual relation-ship in any living together contract you write if you

do, and your contract is reviewed by an vative judge in a separate dispute, the whole contract may be thrown out (Chapter 3 discusses this issue in more detail.)

ultraconser-Legal Definitions of Prohibited Sex Acts Fornication: voluntary sexual intercourse between unmarried people of the opposite sex if one of the people is still married, this is generally considered to

be adultery, not fornication in many states, adultery

is technically a crime, but rarely is anyone prosecuted for it

Cohabitation: Two people living together in an

intimate sexual relationship, without being married some courts, especially those in states where fornica- tion is illegal, describe a cohabitation relationship as meretricious, meaning “of an unlawful sexual nature.”

Sodomy: generally refers to oral or anal sex many states call it an unnatural act or a “crime against nature.” some states prohibit all sodomy, while others prohibit only specific acts.

To find out more about laws (and penalties) regarding cohabitation, fornication, or adultery, check your state laws Chapter 11 provides advice on doing this kind of legal research also, for information on state laws involving adultery that may affect alimony

or division of marital property if you’re living with someone while getting a divorce, see Chapter 8.

B Common Law Marriage

marriage is the legal union of two people once they

become married to each other, their responsibilities

and rights toward one another concerning property

and support are defined by the laws of the state in

which they live while a married couple may be able

to modify some of the rules set up by their state, they

can end their marriage only by a court granting a

divorce or an annulment

many people believe that if you live with

a person for a long time you’re automatically

married—that you have what is called a common law

marriage, with the same rights and responsibilities

of a couple who has been legally married in most

states, including California and new york, this is not

true in these states, marriage requires a license and

ceremony a dozen or so states, however, including

Colorado and Texas, do recognize common law

marriage (see “states recognizing Common law

marriage,” below.) but even living together in one of

these states doesn’t mean you are married you must

intend to be married and “hold yourselves out” to the

world as married

There are no absolute rules or guidelines

whether or not a common law marriage exists

depends on the facts of each situation however, a

common law marriage can occur only when:

• you are a heterosexual couple who lives together

in a state that recognizes common law marriages

• you have lived together for a significant amount

of time (not defined in any state) despite much

belief to the contrary, the length of time you live

together does not by itself determine whether

a common law marriage exists no state law or

court decision says seven years or ten years of

cohabitation is all that is needed for a common

law marriage it’s only one factor the court may

consider, and

• you hold yourselves out to the community

(your neighbors, friends, and co-workers) as a

married couple—typically, this means using the

same last name, referring to the other as “my

husband” or “my wife,” and filing a joint tax

return (for more on the subject of names, see

Chapter 4, section d.)

Courts most often apply the rules of common law marriage in situations where one partner dies without a will, and the other claims there was a common law marriage so as to inherit property under intestate succession laws These laws automatically give a share of property to a spouse but don’t rec-ognize an unmarried partner (Chapter 9, section a, provides an overview of intestate succession laws.)

if your state recognizes common law marriages where both partners are still living, and your relation-ship meets the requirements, you may need to end your relationship by divorcing, just as you would if you had gotten married with a license and ceremony

States Recognizing Common Law Marriage

Common law marriage is recognized in only 15 states, plus the district of Columbia if you live in any of these states and want to know the status of your relation- ship, you will need to read your state’s law Chapter 11 provides advice on doing legal research.

district of Columbia rhode island

1 For inheritance purposes only.

in a few other states, common law marriages will

be recognized if they were created before the date the practice was abolished These are georgia (created be- fore 1997), idaho (created before 1996), ohio (created before 1991), and pennsylvania (created before 2005) kentucky recognizes common law marriage only for purposes of awarding workers’ compensation benefits.

Colorado May Be Recognized in

California

There’s a little trick in the area of common law

marriages a state that doesn’t provide for common

law marriages will still recognize one if it was properly

formed in a state that does provide for them for

example, if you have been living together in a common

law marriage state for many years and then relocate to

a non-common law marriage state soon before one of

you dies, the laws of common law marriage will apply

to the division of the deceased partner’s estate

ExAMPLE: Colorado allows common law

marriages; California does not If Bob and Carol

started living together in Los Angeles in 1980 and

are still happily coupled today (but have never gone

through a marriage ceremony), they are not legally

married, even if they pretend they are If, however,

they started living together in Colorado in 1985 with

the intention of forming a common law marriage

and moved to California in 1995, both Colorado

and California will recognize their common law

marriage as valid.

if you live together in a state that recognizes common law marriages and don’t wish to be married, it’s a good idea for you both to sign a statement making it clear that this is your joint intent

if you use the same last name and/or mix property together, it’s essential that you do this otherwise a common law marriage may later be found to exist

we’ve included a sample of this type of ment below you may want to use this one on its own, or integrate it into one of the living together contracts in Chapter 3

The forms Cd includes a copy of the agree- ment of Joint intent not to have a Common law marriage, and appendix ii includes a blank tear-out copy of this form

C Living Together Contracts

This section describes the basic legal rules of living together contracts and why they are so important for unmarried couples Chapter 3 provides several differ-ent living together agreements you can tailor to your particular situation and directions for completing

Agreement of Joint Intent Not to Have a Common Law Marriage

Wanda oglethorpe and __rich Walters_

agree as follows:

we have been and plan to continue living together as two free, independent beings and neither of us has ever

intended to enter into any form of marriage, common law or otherwise.

Wanda Oglethorpe 3/24/05

Rich Walters 3/24/05

them be sure to read Chapter 10 for details on issues

that may arise should you separate without having

prepared a living together agreement

1 Living Together Contracts—What

They Are and Why Unmarried

Couples Need One

a contract is no more than an agreement to do (or

not to do) something marriage is a contractual

relationship, even though the “terms” of the

contract are rarely stated explicitly, or even known

by the marrying couple saying “i do” commits a

couple to a well-established set of state laws and

rules governing, among other things, the couple’s

property rights should one spouse die or should the

couple split up

unmarried couples, on the other hand, do not

automatically agree to any state-imposed

contrac-tual agreement when they start a relationship The

couple may have a joint obligation to a landlord or

to a mortgage company if they rent or buy a place

together (these issues are discussed in Chapters 5 and

6), but that obligation is no different than if they were

roommates living together, in and of itself, does not

create a contractual relationship, nor does it entitle

you to a property settlement (or inheritance) should

you split up (or should one of you die) as marriage

does

a typical unmarried couple buys property, mixes

assets, and invests together, often without writing

down how they intend to share the property if they

split up Then, if problems about money and property

come up, they usually try to reach an understanding

or a compromise sometimes they visit a therapist or

ask their friends to help if they split up, they quietly

divide their possessions and go their separate ways,

and they are not required to follow the legal rules

that apply to marriage and divorce

but some couples’ relationships don’t end so

well They don’t quietly divide the property and

move on, but instead bring their battle to court

Courts in most states have responded to these claims

by trying to figure out what the couple had agreed

to and dividing their property accordingly in doing

so, courts have ruled that unmarried couples

gener-ally have the right to create whatever kind of living

together contracts they want relating to financial and property concerns

as a result, if an unmarried couple chooses to make an agreement together, or in some states if they act as though an agreement exists, that agreement will often be considered an enforceable contract—a

“nonmarital agreement” in legal terms, or what we call a living together agreement in this book

These agreements do not usually cover personal aspects of your relationship, such as who does the cooking, feeds the dog, or cleans the house in fact, agreements on nonmonetary issues are unlikely to be enforced in court

sometimes living together contracts are made to protect each partner in case the relationship ends but more often, couples enter into them to communi-cate their needs and expectations, define their rights, and enhance one or both partners’ peace of mind at either the start of the relationship or when the couple makes a major purchase Creating a well-crafted agreement not only helps you figure out how you really want to own your property, but also serves as

a useful reminder if misunderstandings develop later

or one of you dies without a will another important benefit of a living together agreement is that if one partner is supporting the other, or if one partner has given up a career in order to take care of the home

or raise children, the agreement will protect the dependent partner by ensuring that issues of support and compensation are stated in writing otherwise, the dependent partner can be left with nothing after having given up a lot

Even though some courts will enforce an oral agreement—or even an implied one—we believe that written agreement is essential, though it’s surely no substitute for trust and communication

a contract won’t enable an unmarried couple

to continue loving one another or prevent them from splitting up; but if times get hard, a written agreement can do wonders to reduce paranoia and confusion and help people deal with one another fairly There are no national statistics on how many unmarried, cohabiting couples enter into living together contracts, but some lawyers say such contracts are on the rise as a result of more couples living together and new legal rulings that support the validity of living together agreements

Contracts

before the 1970s, couples who lived together

without getting married existed in a legal vacuum

The law generally held that money and property

belonged to the person who earned it or originally

owned it Contracts to share earnings or property

usually weren’t enforced by courts on the ground

that the agreements were based on “meretricious

consideration.” Consideration is the price paid in a

contract; meretricious means “having the nature of

prostitution.”

what the courts were saying was that living

together contracts were illegal contracts for sex

out-side of marriage (cohabitation was illegal in all states

until 1970), and illegal contracts cannot be enforced

This meant that unmarried couples were unable to

enforce their agreements to share or divide property

upon separation or death

all this began to change in the mid-1970s, when

the California supreme Court decision in the case of

Marvin v Marvin, 557 p.2d 106 (1976), gave

unmar-ried couples in California the right to make contracts

to jointly own property or to support each other

(see “The Marvin Case,” below.)

because the Marvin case has often been referred

to in the press as a defining event regarding the right

of unmarried couples, many people assume that

the decision is the law everywhere This is an

exag-geration The California supreme Court has no legal

authority outside of California, except by way of

example however, the case’s general proposition—

that unmarried couples are subject to the principles

of contract law—has been universally accepted (with

some variations) by courts of every state

This change in the law was significant now,

contracts between people living together are no

longer illegal

The Marvin Case

The California supreme Court decision in Marvin

v Marvin, 557 p.2d 106 (1976), thrust the issue of

contract rights for unmarried couples into the media spotlight This case rose to prominence partly because

of the late actor lee marvin’s fame, and partly because

of the sweeping nature of the decision The case arose from a dispute between lee marvin and michelle Triola marvin, the woman he lived with and supported for a number of years after they broke up, lee supported michelle for a while, but then stopped she sued him, claiming that they had an oral agreement—

in exchange for her giving up her career as a dancer to

be a full-time homemaker and companion, he said he would support her for the rest of her life.

The trial court initially ruled against michelle, stating that living together contracts between unmarried couples were illegal and unenforceable michelle appealed to the California supreme Court,

which handed down the well-known Marvin decision,

adopting several significant new legal rules for unmarried couples in California most importantly, it stated that unmarried couples did indeed have the right

to make contracts which could be enforced in court.

The Marvin decision did not rule that an unmarried

partner is automatically entitled to financial support (which the media termed “palimony”) just as a divorcing spouse would be entitled to alimony instead, the unmarried partner must prove a legal basis for such

a claim—such as a contract.

palimony isn’t a legal term; it was coined by journalists to describe the division of property or alimony-like support given by one member of an unmarried couple to the other after they break up.

3 Some General Legal Rules Regarding Living Together Contracts

here are some of the basic principles governing

living together contracts, established in the Marvin

case and other court decisions

a Unmarried Couples Don’t Have the

Same Rights as Married Couples

The court in Marvin held that California divorce

laws—alimony and the division of property—don’t

apply to unmarried couples This means that a court

can’t use state divorce laws when your relationship

ends; a court instead will divide up your property

based on contract law principles without a contract

of some kind, neither party will have any rights to the

other’s assets or to post-separation support—unless

the couple lived in a state that recognizes common

law marriage (see section b, above) and held

them-selves out to be married in this case, the relationship

must be ended by divorce

The general rule that marital property rules do

not apply to unmarried couples has been widely

adopted in other states however, a few states that do

not recognize common law marriage have

never-theless found ways to provide some property to a

long-term living together partner when a relationship

ends for example, at least one court in the state of

washington has applied marital community property

law to unmarried couples, even though the state

doesn’t recognize common law marriage (Connell v

Francisco, 898 p.2d 831 (1995).)

b Unmarried Couples May Enter Into

Contracts

The court in Marvin stated that unmarried couples

may make express contracts concerning their

prop-erty, money, or other assets an express contract is

one made in words—oral or written

This was a significant change in the law:

Contracts between people living together in a sexual

relationship were no longer illegal The court added

a caveat that is recognized in many other states: if

the contract is explicitly based on sexual services

performed by one partner, the contract is invalid

(see “don’t mention sex,” below.)

The courts of nearly every state and the district

of Columbia now enforce written contracts between

unmarried partners most states also recognize oral

(spoken) contracts (Texas and minnesota are the

only states that have passed laws requiring contracts

to be in writing, but courts in other states—including

new york and new mexico—have been unwilling

to recognize implied agreements.) however, if one partner says there was an oral contract while the other emphatically denies it, a judge is unlikely to find that a contract was made, unless other evidence (such as a witness to the discussion about the contract) supports the contract claim

in some instances, courts have recognized contracts that are implied from the circumstances

of the couple’s relationship (jointly contributing to purchase expensive items, for example) or the bases

of their actions (jointly supporting a partner while you’re living together) if they can be proved in these cases, the court finds not that the couple explicitly agreed to a contract, but that the couple acted as

if a contract existed—that there was an unspoken agreement Courts have found such implied contracts even when the cohabitation was part-time for example, in a case involving the famous lawyer, Johnnie Cochran, the court ruled that even though Cochran spent as little as one night per week with

a woman to whom he was not married, there could still be a valid and enforceable agreement for lifetime

support (Cochran v Cochran, 89 Cal.app.4th 283

(2001).) in that case, Johnnie Cochran lived with patricia, to whom he was not married, and their son, on a part-time basis for many years during some of those years, Cochran was married to other women Cochran provided patricia and their son with monetary support when Cochran stopped the support, patricia sued Cochran argued that even if there was an implied agreement for lifetime support,

it couldn’t be enforced because the Marvin case only

applied to cohabiting couples, and he and patricia never cohabited The court disagreed, ruling that even part-time living together was enough to meet

the “Marvin” standards of cohabitation—and sent

the case back to the trial court to hear evidence as to whether there was, in fact, an implied agreement for lifetime support

Illinois, Georgia, and Louisiana couples beware. These states are all exceptions to the general rule of acceptance of contract rights for unmarried couples There the courts still hold that the

“immoral” nature of living together prevents a couple

from forming a contract (Hewitt v Hewitt, 394

n.E 2d 1204 (1979).) however, some progress has been made: at least one illinois court has held that

contracts not based entirely on living together, and

not resembling marriage claims, may be enforced

(Spafford v Coats, 118 ill app 3d 566 (1983).)

c

Concepts of Fairness (Equity) Some-times Protect the Rights of Members

of Unmarried Couples

The courts of some states, including the California

supreme Court in the Marvin case, have recognized

that the legal concepts of “unjust enrichment”

and “implied contract” can apply to disputes

between unmarried couples in this context, unjust

enrichment means that if one person contributes

something (usually labor, such as housework) to

make the other’s property more valuable, with the

reasonable expectation of receiving a benefit in

return, that expectation will be honored The legal

notion of implied contract is somewhat different if

the circumstances of a couple’s property dealings

look like a contract to share ownership—like an

unspoken agreement—the court will find an implied

contract

ExAMPLE: Janet works to repair and refinish Todd’s boat for nine months, expecting a share

of the resulting increased value After they split

up, Todd refuses to give her a cent If Janet sued Todd to recover her share of the boat she would probably argue that Todd had been unjustly enriched by her work and that she should be paid for her labor

although the legal theory of unjust enrichment has been recognized by many states besides California, including arizona and florida, other

states, such as new york, reject it (Morone v Morone, 50 n.y 2d 481 (1980).) Even in states that

do recognize it, the practical problems inherent in trying to win a lawsuit based on unjust enrichment mean that it’s rarely worth the trouble to file suit, unless large amounts of money are at stake

The lesson to be learned: unmarried couples should record all important understandings (contracts) in writing and never rely on courts to bail them out later

D To Be Safe, Write It Down

by now, one thing should be clear: you can avoid a

host of legal problems by putting your living together

agreement in writing a written contract covering

who owns what is the only way to truly protect

yourself and honor your collective intentions—

whether you want to keep all your property separate

or share your property without some type of written

agreement, you may face serious and potentially

expensive battles if you separate and can’t agree on

how to divide what you have acquired

ExAMPLE: After they break up, Miriam sues Eric

She demands $100,000, an amount she claims

Eric agreed to pay her if they should break up

Cases Based on Implied Contracts and Unjust Enrichment Oregon In re Raimer and Wheeler, 119 or app

118, 849 p.2d 1122 (or Ct app 1993) The couple in

this case lived together for six years and jointly operated

several businesses, including a ranch shirley wheeler

owned the ranch and did the bookkeeping for the ranch

rondal ray raimer worked the ranch, installed an

updated irrigation system (which wheeler reimbursed

him for), brought additional acres under irrigation and

spent a substantial amount of his money on ranching

supplies and equipment when they split up, the oregon

courts awarded raimer one-half of the appreciation

of the ranch and reimbursement for the items he had

purchased for the ranch because both parties had jointly

operated it and treated it as a joint asset while living

together.

Wisconsin. Watts v Watts, 137 wis.2d 506, 405

n.w.2d 303 (1987) here, one partner gave up a career

to move in with the other and become a full-time

homemaker and mother The court said she could sue

under any theory available to non-cohabitants,

includ-ing implied contract (they had an unspoken agreement

that she’d be paid for her services), unjust enrichment (he

benefited from her efforts and should compensate her), or

partition of the jointly held property.

North Carolina. Suggs v Norris, 364 s.E.2d 159

(1988) as in the Watts case above, the court allowed

one partner to sue the other’s estate under any legal

theory available to non-cohabitants she chose unjust enrichment, claiming that they had a joint business, all the proceeds went to him, and she should be paid for her work she was.

California. Byrne v Laura, 52 Cal app 4th 1054

(1997) after byrne died, his living together partner sued his estate for a division of property The trial court rejected laura’s claims as an effort to get marital support The Court of appeal reversed, finding that if laura could prove, as she alleged, that byrne promised to take care of her for the rest of her life, she might be entitled to half of his assets based on an oral or implied contract.

Connecticut. Boland v Catalano, 202 Conn 333,

521 a.2d 142 (1987) This couple lived together for nine years, pooling assets and earnings The court found an implied contract to share income and the “fruits of joint labor.”

New Jersey. In re Estate of Roccamonte, 174 n.J

381, 808 a.2d 838 (2002) in another, more recent case, a Court of appeal held that evidence showing the two parties had a marital-type relationship supported an argument that the male partner had promised to support the female cohabitant for life, and the promise was enforceable against the man’s estate The court also held that it wasn’t necessary for the woman to be completely economically dependent on the man in order for a valid palimony agreement to exist—the promise itself was enough.

within one year of Miriam’s moving 500 miles to live with Eric When Eric emphatically denies that

he had made any such agreement and Miriam can produce no evidence to back up her claim, the court rules for Eric.

putting your contract in writing needn’t be time-consuming or dreary (and it’s certainly better than having a judge write one for you as part of an expensive court fight) approach the task in the spirit

of clarifying your understanding and preserving the shared memory of two fair-minded people The details of how to accomplish this are in Chapter 3

a living together contract that is explicitly based on

sexual services performed by one partner may be ruled

invalid if you end up in court Explicit does not mean

you used sexually explicit language in your agreement

it means that you made reference somewhere in your

agreement to the fact that the two of you are having

sex The courts are very sensitive to any implication

that they are legitimizing any act of prostitution (what

is sometimes called “meretricious consideration”) if a

court can imply from the wording of your contract that

either party agreed to perform any sexual acts in order

to receive a benefit from the contract, it may not be

enforced Even referring to one’s partner as a “lover”

has been held sufficient grounds to throw out a living

together contract

ExAMPLE: Dianne and Val lived together for many

years in a state that didn’t recognize common law

marriages Dianne died without leaving a will, and

Val sued the estate for a share of the accumulated

property, alleging that he gave up his career as

a mountain-climbing guide to live with Dianne

and be her lover, companion, and homemaker in

exchange for a share in the property Because the

word “lover” implies that sexual services are an

inseparable part of their agreement, many courts

would rule that Val can’t recover a share of the

property.

however, some courts have ruled that, in some

situations, a word such as “lover” can be deleted from

the contract, while the rest of the agreement is enforced.

E What Happens to Your Written

Living Together Agreement If

You Get Married?

let’s suppose you take our advice and write your

own living together contract (using one of the forms

in Chapter 3) several years later you decide to tie

the knot is your living together contract enforceable

after marriage? only if it was created shortly before

your marriage or at a time when you both planned to

be married, and only if it meets your state’s standards

for a premarital agreement To be enforceable,

pre-marital (prenuptial or premarriage) contracts must be

made in contemplation of marriage That means that most couples who prepared living together agree-ments will have to sign a new premarital agreement

if they decide to marry and want to keep the same arrangements they’ve had

premarital agreements are a way people who plan to marry can modify the contract imposed

by state marital law you can establish your own property ownership rules in a premarital agreement, which can be somewhat different from the state’s marital property laws so if you do want the property ownership terms of your living together agreement

to apply during your marriage—for example, you’re an older couple and want to keep property separate—you can normally do this by rewriting your agreement as a premarital agreement you can also agree in advance as to how much support one person will pay the other in case of divorce by using

a prenuptial agreement

Twenty-seven states have adopted the uniform premarital agreement act, which lets couples make written contracts prior to marriage concerning ownership, management, and control of property; disposition of property at separation, divorce, and death; alimony; wills; and life insurance beneficiaries (see “states That have adopted the uniform premarital agreement act” below for the list.) The states that haven’t adopted the act have other premarital agreement laws, which often differ

in only minor ways from the act in every state, couples are prohibited from including provisions about child support—the court, not the couple, must make these decisions

premarital agreements are usually upheld by courts unless one person shows that the agreement is likely to promote divorce (for example, by including

a large alimony amount in the event of divorce), was written and signed with the intention of divorcing,

or was unfairly entered into (for example, a spouse giving up all of his rights to his spouse’s future earnings without the advice of an attorney)

here are the main provisions of the uniform act

(a) Parties to a premarital agreement may contract with respect to:

(1) the rights and obligations of each of the parties

in any of the property of either or both of them whenever and wherever acquired or located;

(2) the right to buy, sell, use, transfer, exchange,

abandon, lease, consume, expend, assign,

create a security interest in, mortgage,

encumber, dispose of, or otherwise manage

and control property;

(3) the disposition of property upon separation,

marital dissolution, death, or the occurrence or

nonoccurrence of any other event;

(4) the modification or elimination of spousal

support;

(5) the making of a will, trust, or other

arrangement to carry out the provisions of the

agreement;

(6) the ownership rights in, and disposition of, the

death benefit from a life insurance policy;

(7) the choice of law governing the construction

of the agreement; and

(8) any other matter, including their personal

rights and obligations, not in violation of

public policy or a statute imposing a criminal

penalty.

(b) The right of a child to support may not be

adversely affected by a premarital agreement.

Connecticut new Jersey

delaware new mexico

district of Columbia north Carolina

hawaii north dakota

idaho oregon

illinois rhode island

indiana south dakota

1 use your upcoming marriage as an opportunity

to take another look at your agreement; make any agreed-upon updates and changes

2 rewrite your agreement Call it a prenuptial or premarital agreement, and state that it is made

in contemplation of marriage and does not take effect until you marry

3 because even a small mistake can result in a court later refusing to enforce your agreement, have your new agreement reviewed by an attorney experienced in this area

4 sign your agreement in front of a notary public for more information about premarital agree-ments, see Prenuptial Agreements: How to Write a Fair & Lasting Contract, by katherine E stoner and shae irving (nolo)

F Domestic Partners

you may hear about domestic partnership programs and wonder how they affect unmarried couples This section provides an overview and outlines the legal ramifications of domestic partnerships

1 Domestic Partnership Programs and Benefits

The phrase “domestic partner” is used to describe two people (either of the same sex or opposite sex) who cohabit, have a sexual relationship, and experi-ence economic and social integration—that is, two people who have created their own family

unlike a common law marriage, where two people are holding themselves out as a married couple, in a domestic partnership, the couple is

holding themselves out as distinctly unmarried but

financially responsible for each other Just how cially responsible differs from program to program

finan-a number of cities finan-allow unmfinan-arried couples

to register as domestic partners and offer domestic partnership benefits for city employees Counties, private companies, organizations, and colleges and

universities, plus a few states (including California,

delaware, massachusetts, new york, oregon, and

vermont) also provide domestic partner benefits

to state employees The alternatives to marriage

project website (at www.unmarried.org) has links

to information regarding domestic partner benefits,

including a list of major companies that provide

domestic partner benefits and a guide to getting your

employer to offer domestic partner benefits you can

find a list of the fortune 500 companies that offer

domestic partner benefits by visiting the human

rights Campaign website at www.hrc.org

The benefits provided and qualifications may

vary Common benefits include:

• right to visit in a hospital and make medical

decisions for a partner

• health, dental, and vision insurance

• sick and bereavement leave

• accident and life insurance

• death benefits

• parental leave (for a child you co-parent)

• housing rights and tuition reduction (at

universities), and

• use of recreational facilities

The complete list of potential benefits is

extensive; the typical benefits offered, however, are

not in some cases, all that a company or city offers

is bereavement or sick leave in other situations,

the benefits offered are extensive—and expensive

often, either the employee foots the bill for his or

her partner, or the company pays (if it also pays

for spouses) however, regardless of who pays, the

employee must pay taxes on the benefits The irs

considers benefits awarded to an unmarried partner

as taxable compensation

here are the questions you need to ask to see

how and if domestic partner benefits apply to you:

• who qualifies as a domestic partner—are

heterosexual couples covered or only gay and

lesbian couples? (for example, California has

recently enacted the most comprehensive domestic partners law in the nation, but it covers only same-sex couples and heterosexual couples

62 or older.)

• how will an employer identify your domestic partner—by registration with a local registry (a public record of domestic partners)? some companies may require you to have registered a domestic partnership before extending company health benefits to your partner This is usually to ensure that roommates aren’t taking advantage of the system

• must you and your partner be together for a minimum number of years?

• must you live together and share expenses?

• must you be financially responsible for each other? (usually, you must live together in an exclusive relationship and share basic living expenses, such as food and shelter, with your partner.)

2 What Are the Legal Implications of Registering as Domestic Partners?

depending on where you live, by registering as domestic partners, you and your partner may have created an implied contract for other purposes, such

as sharing income and property (implied contracts are discussed in section C, above.) This is likely to come up if one partner dies without an estate plan and the surviving partner claims to own part of the decedent’s property based on an oral or implied contract

if you are in a domestic partnership, you should make a written property ownership contract, such as one of those included in Chapter 3 This is especially important if you do not wish to share property or income beyond sharing day-to-day expenses a court might treat the fact that you registered as domestic partners as an indication that you had agreed to share ownership of property n

3

Living Together Agreements: Why and how

A Ten Tips for Writing a Living Together Agreement 3/3

B Property Agreements .3/4

1 Agreement to Keep Property Separate 3/5

2 Agreement to Share Property 3/8

3 Signing a Property Agreement or other Living Together contract 3/12

c Agreement to Share ownership of a Joint Purchase 3/13

1 how to Prepare an Agreement for a Joint Purchase 3/13

2 Buying a car Together 3/16

3 how to Transfer ownership in Property 3/17

d Agreement covering Joint Projects 3/17

e Agreement covering homemaker Services 3/19

F Agreement for Artists and Inventors 3/21

g Agreement for People in School 3/23

h Agreement to Protect Person Who Moves a Long distance or gives up a Job 3/25

It’s extremely important to spell out your financial

and property arrangements in a written

agreement—what we call a living together

contract or living together agreement Chapter 2

provides an overview as to why living together

agreements are a good idea among other things,

they help avoid problems when you commingle

money and property; make clear what your

intentions and expectations are regarding property

ownership, caring for children, covering household

expenses, and the like; and ease the division of

property during a breakup Examples of problems

unmarried couples face if they don’t have a living

together agreement are discussed throughout the

remainder of this book for example, in Chapter 4,

you’ll learn why it’s important to put in writing your

agreement to commingle or keep your property

separate; Chapter 6 discusses why you should

have a contract if you plan to jointly own a home;

and Chapter 10 explains how not having a written

agreement can cause major problems if you break

up

of all the reasons to write out your agreement,

avoiding a court fight is probably the most important

from a practical perspective, little gets resolved in

court without costs and legal fees eating up the lion’s

share of the money and property in dispute Those

of you who have been through a contested divorce

already know this once you add up the time,

emotional pain, and bitterness that are always a part

of our adversary process, you should be reaching for

your pen (or keyboard)

obviously, you don’t need a living together

contract if you have no assets or are in a brief

relationship but in a long-term and serious

relationship, whether you’re basking in the glow

of just having “joined forces” or you’ve been

together 20 years, you should consider the legal

consequences of how you live

This chapter on living together contracts is

designed to help you clarify your understanding

about your life as a couple, which should lessen

disagreements and misunderstandings when things

are going well Talking out (and writing down) your

intentions should bring you closer, and help you

overcome any fears or concerns you may have about

money, property, and your future and if you do split

up, having an agreement helps you avoid litigation if

a lawsuit is filed, the judge will focus on interpreting your written agreement, not on trying to infer an implied contract from your behavior, or determining who’s right if one of you claims you had an oral contract and the other disagrees

your living together contract need not be like the fine-print monsters rammed down your throat by car salesmen or insurance agents a simple, compre-hensive, and functional document using common English is much better than one loaded with “hereto-fores,” “pursuants,” and other legalese you can, and should, design your agreement to say exactly what you both want, in words you both understand This chapter shows how to do just that, starting with some basic advice on preparing a living together agreement (section a) next, section b includes two basic property agreements (one for pooling assets and one for keeping them separate), covering issues such

as how you’re sharing costs and property ship, what happens to your property if you break up

owner-or one of you dies, and how to deal with disputes over your agreement section C includes a more narrow agreement for sharing ownership of specific items, such as a computer system finally, sections

d through h include contracts designed to cover specific situations, such as when one member of a couple puts the other through school or gives up a job to be in the relationship

all of our contracts are written in plain English and easy to follow please read (or at least skim) all the contracts in this chapter before deciding which one to use you may choose to copy the contract verbatim, customize one to meet your specific needs,

or use our contract as a starting point for your own agreement

Chapters in this book provide agreements covering other aspects of your relationship, including:

• renting a home together (Chapter 5): how to prepare an agreement spelling out your respon-sibilities to each other as tenants, covering who pays what portion of the rent and expenses, who gets the place if you split up, and the like

• buying or owning a house together (Chapter 6): how to write a contract for owning a house together, including sharing costs and ownership, what happens to the house if you break up or

one of you dies, and how to deal with disputes

over the house

• having children together: how to prepare

paternity statements (Chapter 7) or custody

The rest of this chapter provides specific instructions

and forms you will need to prepare a living together

agreement here are some basic tips to keep in mind

as you go:

1 Talk it out and reach an understanding

before you can prepare a written agreement covering

ownership of your property, the two of you must

agree on how you will conduct your financial affairs

This is especially true if one of you makes sacrifices

for the relationship, such as moving a long distance

or giving up a job to care for small children how

you reach an understanding about money and

property issues is up to you we suggest that before

trying to reach an agreement, you carefully read the

rest of this chapter (and if real property is involved,

Chapter 6) so you understand your options

many people find that creating a contract forces

them to deal with the very guts of their relationship

This is usually a healthy thing to do now and then—

but it can also be trying Take your time; don’t expect

to finish in an evening a good contract often involves

compromise and accommodation preparing your

contract should be an affirmative act, but it’s up to

you to make it so if you get bogged down in trading

this for that and wonder why you’re dealing with all of

this legal mumbo-jumbo, take a break and get back to

it when you’re both feeling more cheerful

2 Cover the basics—property and money

a living together contract can be comprehensive,

covering every aspect of your relationship, or it can

be specific, covering only your new car purchase

living together contracts can include a wide

variety of economic arrangements you can keep all

property separate, or agree that what belongs to one

belongs to both or perhaps your agreement will be

somewhere in between—such as keeping property brought into the relationship separate, but agreeing

to share expenses equally and make joint purchases after you start living together but regardless of how detailed your contract is or how much you decide to include, you must deal with two basic issues: money and property

3 Don’t try to cover everything in one contract. relationships and people are complicated

if you try to cover too much ground in one contract, you’ll get bogged down and never figure it all out it’s often better to have several smaller agreements covering specific issues for example, your property agreement (section b) should be separate from whatever agreement you have to support a partner who’s in school (section g) your agreement on sharing housing costs and ownership should also be separate, as explained in Chapters 5 and 6

4 Don’t get personal. as we’ve explained in Chapter 2, agreements between unmarried partners are generally enforceable to the extent they cover property, payment for services (excluding sex), or payment in exchange for a person giving something

up, such as a job or a house however, a court

is unlikely to enforce an agreement that covers nonmonetary issues The contracts included in this chapter pertain only to property and finances They do not cover the day-to-day details of your relationship, such as who will do the dishes, who will walk the dog, how many overnight guests you’ll allow, and whose favorite painting goes in the living room a court won’t—and shouldn’t be asked to—enforce these kinds of personal agreements if your agreement includes personal as well as financial clauses, a court might declare the entire contract illegal or frivolous and refuse to enforce any of it—including the more important financial clauses obviously, you need to be clear with your partner on things such as housecleaning and cooking Just don’t mix up these day-to-day issues with the bigger legal issues of living together

5 Don’t mention sex. a living together agreement that is explicitly based on sexual services performed by one partner—even a reference somewhere in the agreement to the fact that the two

of you are having sex—may be ruled invalid if you end up in court for more on this, see Chapter 2, section d

6 Don’t prepare a living together agree-ment about sharing property if one or both of

you are married to someone else in many states,

if the partner who is still married is permanently

separated from his or her spouse, it may be

pos-sible to create a legally valid living together contract

to share property unfortunately, however, little is

certain in this legal gray area where there are few

court rulings Therefore, if one of you is still married

to someone else, it’s best to agree in writing to keep

all your property separate until the divorce is final

Then you can write a new agreement, pooling your

property if you both wish to do so for more on legal

issues that arise when you live with someone while

you’re still married, see Chapter 8

7 Get legal advice before signing an

agreement if a lot of money or property or

complicated estate planning is involved This is

just common sense—particularly if one partner has

substantially more assets than the other

8 Get legal help if bargaining power isn’t

equal. a living together contract might not be

enforced if a judge concludes that one person has

taken unfair advantage of the other for example,

a court is unlikely to uphold a one-sided living

together contract between an experienced lawyer

and an unsophisticated, but wealthy, 19-year-old

who just moved to america and speaks little English,

under which the immigrant agrees to support the

lawyer

9 Get legal help if you live in Illinois in

illinois, it’s doubtful that any living together contract

is enforceable as explained in Chapter 2, section C,

courts in illinois remain an exception to the general

acceptance of contract rights for unmarried couples

you may be able to create a legal living together

contract in illinois by stating, in writing, that your

agreement is simply a contract to share the ownership

of certain property and has nothing to do with your

personal relationship see a lawyer for advice

10 Agree in advance to mediate disputes

that may arise over your agreement. we

recommend mediation because it is cheaper,

faster, and usually less painful than litigation all

of the contracts in this chapter include a general

clause stating that you agree to bring in a third

party to mediate any dispute that may arise out of

the contract (for an example, see Clause 6 in the agreement to share property, below.) The same clause provides that one partner may request formal arbitration should mediation prove unsuccessful To learn what’s involved with mediation or arbitration,

be sure to read Chapter 10, section d, which provides detailed information on these forms of dispute resolution

What Happens to Your Living Together Agreement If You Get Married?

your living together contract will be enforceable after marriage only if it was created shortly before your marriage at a time when you both planned to marry

To be enforceable, prenuptial (or premarital) contracts must be made in contemplation of marriage and they must meet the applicable state standards for premarital agreements wherever you live for more details, including how to turn your living together contract into

a prenuptial agreement, see Chapter 2, section E.

or all property to your partner you can agree to split income and expenses in many different ways, some equal, some not you can keep separate bank and checking accounts, credit cards, and insurance, or create joint accounts you can decide in advance who gets what should you separate, or agree to a process for resolving any disputes that come up should you separate

we suggest you start with one of our basic contracts:

• agreement to keep property separate (section b1), or

• agreement to share property (section b2)

read both contracts and see which one works

better for you, editing as appropriate as discussed in

section b3

The forms Cd includes copies of both the

agreement to keep property separate and the

agreement to share property as well as attachment

a, separately owned property, and attachment b,

Jointly owned property appendix ii includes blank

tear-out copies of all these forms

1 Agreement to Keep Property

Separate

Especially in the first year or two after they get

together, most unmarried couples keep all or most of

their money and property separate—with the

occa-sional exception of a joint account to pay household

bills or an agreement to purchase one or more items

jointly

you may think that keeping your property

own-ership separate is so simple that you don’t need a

written agreement Think again because most states

recognize oral contracts between unmarried couples

(as discussed in Chapter 2), the lack of a written

agreement can be an invitation for one partner to

later claim the existence of an oral property-sharing

agreement This is what commonly occurs in the so-called palimony cases that regularly hit the headlines

To avoid the possibility of future misunderstandings concerning property ownership, use the agreement to keep property separate form shown below to confirm that each of you plans to keep your property and income separate—unless you make a specific written agreement otherwise This agreement keeps all of your property separate, including property you brought into the relationship

as well as property you purchased with your own money or received by gift or inheritance while living together

Be sure to read Chapter 4, Section B, for other ways to maintain your financial independence.

here are a few things to keep in mind if you’re using the agreement to keep property separate.Clause 2 states that you will attach a separate list of major items you own to the agreement simply prepare an attachment, such as the sample separately owned property form shown here, listing the personal property each of you owns if this is the first attachment to your contract, label it attachment

a as shown here (see “how to Edit or modify a

rose Jackson Alan Lewis

Agreement to Keep Property Separate

and agree as follows:

1 This contract sets forth our rights and obligations toward each other we intend to abide by the provisions in a spirit of cooperation and good faith.

2 all property owned by either of us as of the date of this agreement will remain the separate property of its owner and cannot be transferred to the other person unless this is done in writing we have each attached a list

of our major items of separate property to this contract (see attachment a, separately owned property.)

3 The income each of us earns—as well as any items or investments either of us purchases with our income— belongs absolutely to the person who earns the money unless there is a written joint ownership agreement as provided in Clause 6.

4 we will each maintain our own separate bank, credit card, investment, and retirement accounts, and neither of

us will in any way be responsible for the debts of the other (if we register as domestic partners in a community that makes this option available and, by so doing, the law requires us to be responsible for each other’s basic living expenses, we agree to assume the minimum level of reciprocal responsibility required by the law).

5 Expenses for routine household items and services, which include groceries, utilities, rent and cleaning supplies, will be shared equally.

6 from time to time, we may decide to keep a joint checking or savings account for a specific purpose (for example, to pay household expenses), or to own some property jointly (for example, to purchase a television)

if so, the details of our joint ownership agreement will be put in writing (either in a written contract or a deed, title slip, or other joint ownership document)

7 should either of us receive real or personal property by gift or inheritance, the property belongs absolutely to the person receiving the gift or inheritance and cannot be transferred to the other except in writing.

8 in the event we separate, each of us will be entitled to immediate possession of our separate property.

9 any dispute arising out of this contract will be mediated by a third person mutually acceptable to both of us The mediator’s role will be to help us arrive at a solution, not to impose one on us if good faith efforts to arrive

at our own solution to all issues in dispute with the help of a mediator prove to be fruitless, either of us may make a written request to the other that the dispute be arbitrated in that case, our dispute will be submitted to arbitration under the rules of the american arbitration association, and one arbitrator will hear our dispute The decision of the arbitrator will be binding on us and will be enforceable in any court that has jurisdiction over the controversy by agreeing to arbitration, we each agree to give up the right to a jury trial.

10 This agreement represents our complete understanding regarding our living together and replaces any and all prior agreements, written or oral it can be amended, but only in writing, and any amendments must

be signed by both of us.

11 if a court finds any portion of this contract to be illegal or otherwise unenforceable, the remainder of the contract is still in full force and effect.

_ _

date _ _

living Together agreement,” below, for advice on

preparing attachments.) This sample is just a partial

list of what most couples own you should be very

specific—at least list all items worth $100 or more

be sure to update your list from time to time—once

a year is a good period making an agreement about

the property you bring into the relationship may

seem unnecessary, but it’s not Think about trying to

separate it all ten years from now, when you’ve both

been referring to everything around the house as

“ours.”

A property inventory will also come in very handy for insurance purposes should your property be stolen or damaged in a fire, flood, or other natural disaster.

Clause 4 of the agreement to keep property separate specifies that if you register as a domestic partner in a program that makes you responsible for each other’s basic living expenses, you agree

to only the minimal level of reciprocal financial responsibility we include this language because,

Attachment A Separately Owned Property

The following is the separate personal property of : _ _ _ _ _ _ _ _

The following is the separate personal property of : _ _ _ _ _ _ _ _ _

rose Jackson Living room furniture: blue sofabed, red armchair, oak rocking chair, and glass coffee table

dell personal computer

King-size bed

cuisinart food processor

Alan Lewis oriental rugs in living room and dining room

Pine dining room table and six chairs

Stereo system, Tv, and vcr

Kitchen table and matching chairs

as discussed in Chapter 2, section f, registering as

domestic partners may imply that you intend to share

ownership of property unless you include this type

of disclaimer of course, if no domestic partnership

programs are available to you, or you do not intend

to register as domestic partners, you might wish to

delete this sentence of Clause 4

Clause 5 provides that you will share expenses

for household items and services equally if you have

a different arrangement, or want to spell out how

you will split expenses of nonhousehold items, such

as insurance or car repairs, you can edit Clause 5

accordingly

Clause 6 refers to a joint ownership

agree-ment that you may prepare from time to time—for

example, if you purchase a television or computer together section C, below, includes a sample agree-ment you can use for this purpose, and covers issues such as what happens to the jointly owned property

if you separate

2 Agreement to Share Property

Especially if you have been together several years or more and have begun to jointly purchase property (a new car or bed, for example), you may want

to do what a fair number of unmarried couples do—abandon your agreement to keep property separate, and instead treat property that either

of you purchases as jointly owned if this is your understanding, write it down use the agreement to share property

Special Problems of Artists, Writers, and Inventors

Creative people often work on inventions, software

programs, artwork, or books for a long time while the

work is in progress—and even when it’s done—it is

usually unclear how much monetary value, if any, the

finished product will have if you keep all your property

and income separate, valuing creative works won’t be a

problem Each person owns what he or she has created.

if you agree to pool the property you accumulate

while living together, however, valuing creative work—if

you split up—can be a real problem suppose, for

example, you’re a successful writer who’s been

work-ing on a novel for two years who knows whether this

yet-to-be-published book will sell 5,000 copies, a million

copies, or some number in between? if you and your

partner break up, even if you happily agree to divide

your property, you may have real difficulty doing it fairly.

if you’re determined to share all of your property, you

will face some important issues when it comes to creative

works protected by copyright, trade secret, or patent laws

(also known as intellectual property laws) for example,

co-owning a painting is quite different from co-owning

the copyright in that painting The owner of the painting

makes money when the painting is sold; the owner of

the copyright makes money when the image is licensed

for use on postcards, books, posters, or other

merchan-dise if you are an inventor, the rules can be even more

complex under patent law, for example, each co-owner

has the right to license the invention without paying the other co-owner.

if you and your partner wish to share in the income from artistic or inventive property, we recommend that you create an agreement that establishes: (1) that owner- ship in any intellectual property rights will be retained

by the partner who created the work; and (2) that income from the sale or licensing of the works will be shared equally between the partners for a fixed time period, after which the owner no longer has to share the income with the other partner.

This arrangement provides for sharing of income but allows the creator of the creative work to control the sales and licensing deals—an important factor for every writer, artist, or inventor The use of a fixed time period guarantees that the split will not go on forever; keep in mind that copyright protection, for example, lasts over a

100 years

The sample agreement for artists and inventors tract in section f includes the options discussed above This is just one of many ways that intellectual property can be divided if you and your partner are concerned about the rights and income associated with a creative work, have a lawyer familiar with intellectual property law review any agreement you prepare before you sign

con-on the dotted line.

Beth Spencer rich Portman

Agreement to Share Property

and agree as follows:

1 This contract sets forth our rights and obligations toward each other we intend to abide by this agreement in a spirit of cooperation and good faith.

2 all earned income received by either of us after the date of this contract and all property purchased with this income belongs in equal shares to both of us with the following exceptions:

3 all real or personal property earned or accumulated by either of us prior to the date of this agreement (except jointly owned property listed in attachment b of this agreement), including all future income this property produces, is the separate property of the person who earned or accumulated it and cannot be transferred to the other except in writing attached to this agreement in the form of attachments a, separately owned property, and b, Jointly owned property, are lists of the major items of property each of us owns separately and both of

us own jointly as of the date of this agreement.

4 should either of us receive real or personal property by gift or inheritance, that property, including all future income it produces, belongs absolutely to the person receiving the gift or inheritance and cannot be transferred

to the other except in writing.

5 in the event we separate, all jointly owned property will be divided equally.

6 any dispute arising out of this contract will be mediated by a third person mutually acceptable to both of us The mediator’s role will be to help us arrive at a solution, not to impose one on us if good faith efforts to arrive

at our own solution to all issues in dispute with the help of a mediator prove to be fruitless, either of us may make a written request to the other that the dispute be arbitrated in that case, our dispute will be submitted to arbitration under the rules of the american arbitration association, and one arbitrator will hear our dispute The decision of the arbitrator will be binding on us and shall be enforceable in any court that has jurisdiction over the controversy by agreeing to arbitration, we each agree to give up the right to a jury trial.

7 This agreement represents our complete understanding regarding our living together and replaces any and all prior agreements, written or oral it can be amended, but only in writing, and any amendments must be signed

form to establish that all newly acquired property—

except that given to or inherited by one partner, or

that which is clearly specified in writing as

sepa-rate property—is to be jointly owned by both, and

equally divided should you separate

To complete the agreement to share property,

simply fill in your names, fill in the blank in Clause

2, and sign the agreement

note that Clause 3 assumes that you will attach

a list of the property each of you owned prior to the

date of your agreement (see sample attachment

a, separately owned property, above.) Clause 3 also assumes you will attach a list of jointly owned property (see sample attachment b, Jointly owned property.) you may be as detailed as you want in preparing these separate property lists, but at least include major items (valued at $100 or more) be sure to update your lists from time to time—either when you make a major purchase or at least once a year

Attachment B

Jointly Owned Property

equal proportions except as otherwise noted:

Beth Spencer and rich Portman

Sony video camera

electric lawn mower

deck furniture including table, umbrella, and six chairs

Blue ceramic dinnerware from Pottery Barn (set of six)

All linens and towels

one of the property agreements or other living together

contracts in this book may meet your needs perfectly

however, it’s more likely you’ll want to make some

changes to fit your circumstances—either the first time

you prepare an agreement or sometime down the road

Editing a form in this book. many unmarried

couples will be able to use one of our living together

agreements as is, simply filling in a few blanks and

signing it you may decide to edit or delete part or all of

a particular clause or you may want to add a clause

Changing an agreement is obviously no problem if you

use the forms Cd (see “how to use the Cd-rom,”

appendix i of this book)

but if you need to add anything to a tear-out copy of

a property agreement or other living together contract,

take the following steps:

1 if you want to delete all or part of a clause,

sim-ply cross out the words or clauses you want to

delete—then each of you must intial each deletion if

you want to delete several provisions, you’ll need to

renumber the clauses, or redo the entire contract to

avoid confusion.

2 if you want to add words to a clause, you must insert

the new language into the specific clause of the

agreement, or refer to it as an attachment, by adding

the words: “Clause [number] continued on

attach-ment a [or b, C, and so on] of [name agreeattach-ment].”

Example: “Clause 2 continued on Attachment A of

Agreement to Share Property.”

similarly, if you want to add a new clause, insert the

words “agreement continued on attachment b of [name

agreement]” after the last clause of the agreement and

before the place where the agreement gets signed.

3 make your own attachment form, using a sheet of

blank white paper at the top of the form, write

“at-tachment a [or b, C, and so on] to [name the

agree-ment] between [insert both of your names]—page 1

of 1.”

Example: “Attachment A to Agreement to Share Property Between Beth Spencer and Rich Portman— Page 1 of 1.”

if you need more than one page, the first page of the attachment should be labeled “page 1 of 2,” the second

“page 2 of 2,” and so on.

4 begin the attachment with the words “a continuation

of Clause [number]” and then add the clause number

or, if you’re adding a new clause, simply write the new clause number

5 Type or print the additional information on the attachment.

6 both you and your partner should initial the ment at the bottom of each page.

attach-7 staple the attachment to your agreement.

Changing a form after you’ve signed it

modifications of a written living together contract should always be in writing This is because ancient, but still ap- plicable, legal doctrines usually make oral modifications

of a written contract invalid in addition, our contracts expressly state that any changes must be in writing a modification can simply state that you agree to change your contract, and then set out the change date and sign all modifications but if you’re making really major changes, tear up the old agreement and start over you should evaluate your living together agreement from time to time (maybe once a year on your anniver- sary) as your relationship or your situation changes.

See a lawyer if you’re making major changes to a living together agreement—or if lots of money is at stake.

by the time you finish modifying one of our agreements, your changes may pretty much replace the original you’ve created your own contract if you’re at all nervous about the legality

of the new document, especially if it refers to significant amounts of money or if property

is involved, have a lawyer look at your living together agreement